e-Discovery is Here to Stay… Are You Working with a Certified Expert?

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Electronic discovery, also called ediscovery or e-Discovery, refers to the process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.  e-Discovery can be carried out on just a specific computer or it can be done in an entire network or networks. Court-ordered or government sanctioned hacking for the purpose of obtaining critical evidence is also a type of e-discovery.

e-Discovery is an extremely important litigation issue and will only increase in importance over time. The world has changed. Just a few years ago work product was written, printed, and kept in hard-copy files.  Business conversations were conducted in person and over the phone.  Now, millions of e-mails are sent daily. Drafts and redrafts of important business and other word processing documents are viewed and commented upon by many people and stored on computers located in many different locations. Conversations between business associates are occurring in real time with texting and instant messaging, but not necessarily in person. Many individuals and businesses use joint online calendars. Many documents, data, and other electronic materials are no longer being converted to paper but are created, revised, and stored in only electronic format. Because of this, it is necessary to “discover” this electronic information in your criminal and civil cases.

e-Discovery:  digital evidence

The very nature of digital data makes it extremely well-suited to investigation. First: digital data can be electronically searched fairly easily, whereas paper documents must be scrutinized, page by page, line by line, manually. Second: digital data is very difficult or nearly impossible to completely destroy, particularly if it gets into a network. This is because the data will appear on multiple hard drives and because digital files, even if deleted, can almost always be “undeleted.” In fact, the only reliable way to destroy a computer file is to physically destroy every hard drive where the file has been stored.

Digital evidence is found on computers, servers, e-mail, smartphones, tablets, USB flash drives, external hard drives, and removable media like CDs and DVDs.  Digital evidence may include: emails, voicemails, instant messages, text messages, photographs, video, audio files, social media, calendars, computer search histories, downloads, online documents, spreadsheets, metadata, databases, file fragments, and any other electronic information that is stored on a digital device, even old devices like floppy disks.  Even malware, such as viruses and spyware can be secured and investigated.

Computer Forensics

Computer forensics, also called digital forensics or cyber forensics is a specialized form of e-discovery in which an investigation is carried out on the contents of the hard drive of a specific computer. After physically isolating the computer, an investigator makes a digital copy of the hard drive. Then the original computer is locked in a secure place to maintain its original condition. All investigation is done on the digital copy.

The digital forensics process is a 4 step process and includes:

  1. Acquisition
  2. Preservation
  3. Analysis
  4. Reporting

What is the value of a digital forensic expert?

Electronic discovery has become a major part of many, if not most court cases, both civil and criminal.  Often electronic evidence can be the determining factor in a case’s outcome. Because of this, you want to have a digital forensic expert witness as part of both your legal team and case presentation in court.  This is not an area for do-it-yourselfers or your “IT” guy.  You not only need the appropriate specialized tools and equipment necessary for a thorough examination, you need in-depth knowledge of the process to produce trustworthy results.  Effective, expert testimony can mean the difference between winning and losing your case.

Here’s what your digital forensic expert should do:

  • Provide an impartial examination of your case.
  • Use the e-Discovery process to collect electronic evidence.
  • Thoroughly analyze the evidence and report their findings.
  • Be an effective expert witness in court.

E-discovery is a fast-moving, evolving field that goes far beyond technology. It gives rise to multiple legal, political, security, constitutional, and personal privacy issues, many of which are still being resolved.  It is important to include a trained and certified digital forensics expert with professional associations to your team. Your expert should have both legal expertise and technical knowledge. This means you’ll need someone who is more than just a “techie” extracting data.

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Contact us today to discuss e-Discovery and your digital forensic needs. Get in touch with one of our experts now by visiting www.prudentialassociates.com.